ML072620037
| ML072620037 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 09/18/2007 |
| From: | Baty M NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 14135 | |
| Download: ML072620037 (5) | |
Text
September 18, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
AMERGEN ENERGY COMPANY, LLC
)
Docket No. 50-219-LR
)
(Oyster Creek Nuclear Generating Station)
)
NRC STAFF MOTION IN LIMINE REGARDING CITIZENS REPLY INTRODUCTION Pursuant to 10 C.F.R. § 2.323 and Memorandum and Order (Hearing Directives)
(Sept. 12, 2007) (unpublished) (Sept. 12 Order), at 3, the staff of the U.S. Nuclear Regulatory Commission (Staff) submits this motion to exclude portions of Citizens Reply to AmerGen and NRC Staff Rebuttal Testimony (Sept.14, 2007) (Reply). For the reasons set forth below, the Staff requests that the Board exclude from the evidentiary record or otherwise not consider the portions of Citizens Reply discussed below.1 DISCUSSION The Staff has previously briefed the scope of this proceeding, the litigable issues in this proceeding, and what evidence is admissible in this proceeding. See NRC Staff Motion in Limine Regarding Citizens Initial Presentation on Drywell Contention (July 27, 2007) (Staff July 27 Motion).
Citizens argument that some courts have required 95% confidence for acceptance of scientific evidence is irrelevant and should be excluded or given no weight. See Reply at 4.
1 The Staffs request is framed in the alternative because the Board previously declined to expunge irrelevant material and indicated that it will accord such material no weight. See Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) (Aug. 2, 2007) (unpublished) at 2.
Consistent with the Boards Sept. 12 Order, the Board has ordered Citizens to redact certain irrelevant material, see Sept. 12 Order at Attachment A, the Staff maintains that immaterial or irrelevant portions of admissible documents should be excluded to the extent practicable in accordance with 10 C.F.R. § 2.337(a).
Citizens cite examples of courts requiring 95% confidence in cases involving the admissibility of epidemiological studies and DNA evidence. Id.
In addition, A10 of the Sur-Rebuttal Testimony of Dr. Rudolf H. Hausler Regarding Citizens Drywell Contention (Sur-Rebuttal Testimony) (Sept. 13, 2007) should be excluded because it impermissibly challenges the scope spatial scope of AmerGens UT program.
Citizens late-filed attempts to challenge the scope of AmerGens UT monitoring program are inadmissible in this proceeding. See LBP-06-22, 64 NRC 229 at 249-51; Memorandum and Order (Clarifying Memorandum and Order Denying AmerGens Motion for Summary Disposition) (July 11, 2007) (unpublished) (July 11 Order) at 5;.Sept. 12 Order at Attachment A (excluding Dr. Hauslers direct testimony at 8, answer 20 (final sentence)).
The contour plots included in Citizens Exhibits 13 and 39 should also be excluded. In A5 of the Sur-Rebuttal Testimony of Dr. Rudolf H. Hausler Regarding Citizens Drywell Contention (Sur-Rebuttal Testimony) (Sept. 13, 2007), Dr. Hausler, states that since his initial and rebuttal testimony, he has refined his calculations and therefore the contour plots included in Citizens Exhibit 61 should be regarded as definitive. Dr. Hausler therefore admits that his previously submitted plots are in accurate and unreliable. Therefore, contour plots submitted by Citizens in Citizens Exhibits 13 and 39 should be excluded or accorded no weight pursuant to 10 C.F.R. § 2.337(a).
Dr. Hauslers Sur-Rebuttal Testimony at A27 should be excluded because it is speculative. Dr. Hausler has not provided evidence that the condition of the epoxy coating on the floor of the sand bed demonstrates the existence of a corrosive environment or that the epoxy coating on the drywell shell will behave similarly.
Dr. Hauslers Sur-Rebuttal Testimony at A31 should be excluded or given no weight.
The Staff maintains its position that Citizens have not demonstrated that Dr. Hausler is qualified by knowledge, training, or experience to provide expert opinion regarding the application,
performance, or expected life span of an epoxy coating on the exterior of a drywell shell.
Pursuant to 10 C.F.R. § 2.323(b), Staff counsel contacted counsel for the other parties to resolve the issues raised in this motion. Counsel for AmerGen supports the Staffs motion.
Citizens oppose.
CONCLUSION For the reasons discussed above, the subject motion should be granted.
Respectfully submitted,
/RA/
Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 18th day of September, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
AMERGEN ENERGY COMPANY, LLC
)
Docket No. 50-219-LR
)
(Oyster Creek Nuclear Generating Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the ANRC STAFF MOTION IN LIMINE REGARDING CITIZENS REPLY@ in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or as indicated by an asterisk, by electronic mail, with copies by U.S mail, first class, this 18th day of September, 2007.
E. Roy Hawkens, Chair Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ERH@nrc.gov Anthony J. Baratta Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 AJB5@nrc.gov Paul B. Abramson Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 PBA@nrc.gov Office of the Secretary ATTN: Docketing and Service Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 HEARINGDOCKET@nrc.gov Office of Commission Appellate Adjudication Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAmail@nrc.gov Debra Wolf Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 DAW1@nrc.gov Suzanne Leta Liou*
NJ Public Interest Research Group 11 N. Willow St.
Trenton, NJ 08608 sliou@environmentnewjersey.org
Richard Webster, Esq.*
Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu Donald Silverman, Esq.*
Alex S. Polonsky, Esq.*
Kathryn M. Sutton, Esq.*
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, DC 20004 dsilverman@morganlewis.com apolonsky@morganlewis.com ksutton@morganlewis.com J. Bradley Fewell, Esq.*
Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 bradley.fewell@exeloncorp.com Paul Gunter, Director*
Reactor Watchdog Project Nuclear Information And Resource Service 6930 Carroll Avenue, Suite 340 Takoma ParK, MD 20912 E-mail: paul@beyondnuclear.org
/RA/
Mary C. Baty Counsel for the NRC Staff